Surrogacy gives birth to legal (and human) riddle

This is definitely one for the “no good deed goes unpunished” file. 20 months ago an Indiana woman had a fertilized egg implanted in her pharmacologically prepared uterus. But she had no intention of raising the child. Instead, she planned to be an aunt. The egg and sperm came from her sister and her sister’s husband. It was a loving, kind, and generous act.

But when the child was born the couple on the receiving end of this generosity ran into a problem,

(t)he couple – known as T.G. and V.G. in court records – then petitioned Porter County Circuit Court to have the genetic mother’s name on the child’s birth certificate. The surrogate, V.G.’s sister, filed an affidavit in support of their petition.

But the judge refused, ruling that “Indiana law does not permit a non-birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother.

via Ind. court to decide in vitro baby’s legal mother – KansasCity.com.

The case was heard today by the Indiana Court of Appeals in a constitutional challenge to Indiana’s paternity laws. But unlike Solomon’s gambit of offering to split the child in half, everyone in this court wanted to find a way to respect the intentions of this family so that the genetic mother’s name would appear on the birth certificate. Rather than a protracted constitutional battle that could drag on for months,

(t)hey spent much of the 40-minute hearing trying to craft a simpler solution that could be used as a precedent.

“It seems to me that everyone’s singing the same song,” said Chief Judge John G. Baker. “We just want to make sure we’re in tune.”

via Ind. court to decide in vitro baby’s legal mother : 24 Hour Breaking News : The Buffalo News.

It is tempting to see this just as a situation in which the law lags behind technology. While clearly it is that as well, and the Indiana legislature needs to get its statutes and regulations up-to-date, this is also another example of technology leap-frogging so high and far over culture that we are left dizzy. The dilemmas faced by T.G. and V.G. are inevitable results that come from technologically separating “biological mother” from “birth mother.”

To illustrate those dilemmas consider egg donation, a situation that reverses the intentions of this Indiana couple. In egg donation the woman providing the genetic information (the “biological mother”) has no intention of being the mother. Instead, the gestational carrier (the “birth mother”) does.

If V.G. has maternal rights does that also mean that an egg donor should have a claim on the child who is born since that claim is identical to the one V.G. is making? Even if a “contract” is signed, should and egg donor be allowed to change her mind and assert maternal rights? Or what if the birth mother changes her mind and decides she does not want the child (unlikely I know, but when you work around reproductive medicine the unlikely is just tomorrow’s nightmare). Do maternal rights and obligations revert back to the original egg donor?

Egg donor or biological mother? Gestational surrogate or birth mother? Who is the intended parent and who will the child call mommy? Human intentions are what gives meaning to these new technologically-mediated possibilities. Judges and statutes need to be true to those intentions. But intentions are messy and inconsistent. Far messier than the consequences reproductive technologies magnify and concretize. We can move genetic information from person to person with much greater certainty than we can know what we want. I don’t think these dilemmas will ever be solved, not really.

We can’t put the genie back in the bottle, and who would want to if we could. Perhaps the best we can do while sitting with the inevitable legal (and human) riddles is take pleasure in the thought of an 11 year old Indiana boy happily playing with parents, and an aunt, who love him enough to put up with all this.